1. Land measuring 51 Kanals covered by Survey Nos.381, 382, 399 and 400 min situated at Morianderbagh, Srinagar is owned by respondents. Vide agreement to sell executed on 10.07.2001 at Jammu the owners agreed to sell the said land to the petitioners in lieu of Rs. 66.00 lacs, which amount was to be paid in four installments; first installment in the month of July 2001, second in the month of September, 2001, third in the month of November, 2001 and the last one in the month of January, 2002. After payment, documents in pursuance of existing SRO for the sale of migrant property were consented to be executed in favour of the petitioner. It is also incorporated in agreement that the petitioner is authorized to apply to the Commissioner, Srinagar for obtaining permission for the purpose and also authorized to follow the case and to get the land transferred by way of mutation and was also authorized to look after the land. It appears that some of the installments as fixed were not received by the respondents which prompted the petitioners to file the suit for specific performance and for injunction before the Court of District Judge, Srinagar.

2. Later on, vide order-dated 23.08.2004 of this Court, the case has been transferred to the court of District Judge, Jammu. In the written statements filed by the respondents execution of agreement to sell has been admitted but has been resisted on the count that it has become void and inoperative after January, 2002 when the petitioners failed to make the payment as per schedule fixed in the agreement. It is also contended that Rs. 15.50 lacs were paid to the respondents and the remaining amount was asked to be paid before execution of the sale deed.

3. It appears that on 22.03.2006 respondents have filed application under order 7 rule 11 CPC for rejection of plaint. Ld. District Judge, Jammu disposed of the said application opining therein that Section 3 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act 1997 not only bars the alienation but also bars the court in passing decree. The court has also opined that Section 11 of the said Act has overriding effect on all other "Act" which are inconsistent. Has finally concluded as under:

"In view of the above discussion I find a fit case to hold that the property is a migrant property and agreement to sell regarding a migrant property is not enforceable. However, the plaint can not be rejected as plaintiff seek alternate relief i.e. the recovery of money which is maintainable and file be put up for further order on 18.10.2006."

4. Appearing counsel for the petitioner at the very out set stated that the conclusion drawn by learned District Judge, is not in consonance with law, neither is it in consonance with the prayer as made in the plaint. The submission as made could not be controverted by appearing counsel for the respondents. In this connection, it is quit apposite to reproduce the prayer clause as made in the plaint:

"In the above premises it is, therefore, prayed that the Honble Court may be pleased to pass a decree in favour of plaintiffs against defendants for specific performance of contract dated 10th July, 2001 and the defendants may be directed to execute the sale deed in favour of the plaintiffs for the disputed land measuring 51 Kanals situated at Morianderbagh Tehsil Khas District Srinagar and alternative a decree for injunction may additionally be passed, if required, directing the defendants to obtain the permission from the competent authority for execution of sale deed with regard to disputed land in favour of the plaintiffs and execute the sale deed in favour of the plaintiffs and not to alienate the disputed land in favour of any third party and not to interfere in possession of plaintiffs over the disputed land."

6. From the prayer clause of the plaint it is quite evident that the petitioners (plaintiffs) have not sought alternate relief for the recovery of money,

Click Here to Read the rest of this document